Tag Archives: Defamation

A little knowledge is a dangerous thing

Originally posted 2008-11-17 00:01:50. Republished by Blog Post Promoter

Knoxnews.com reports:

Unsuccessful state House candidate Roger Byrge is suing Republican Rep. Stacey Campfield for libel.

Byrge, a Democrat who lost his East Tennessee race by fewer than 400 votes, filed the $750,000 lawsuit against Campfield in Jacksboro this week. The lawsuit alleges that Campfield, of Knoxville, falsely wrote on his blog that Byrge had been arrested several times on drug charges. 
Campfield said he has not seen the lawsuit. He said he was only repeating what he had heard about Byrge, and that he was not presenting it as a fact.

An AP report fleshes out the matter of this “not quite a fact” defense some more:

In the Oct. 12 blog post, Campfield said more attention needed to be paid to the race for the open seat in House District 36.

“Word is a … mail piece has gone out exposing Byrge’s multiple separate drug arrests,” Campfield wrote on the blog. “Including arrests for possession and drug dealing. (I hear the mug shots are gold).”

The parts of the post mentioning Byrge are no longer on Campfield’s blog, but a printout of the original text is filed as an exhibit in the lawsuit.

Campfield said Thursday that he was only repeating what he had heard from others.

“I don’t think it ever presents anything as fact,” he said. “I know a little bit about the First Amendment, and I just don’t see him having a basis for damages.”

It would appear that Campfield does know a very little bit about the First Amendment, and even less about the law of defamation. The recent Ohio Supreme Court case of Jackson v. Ohio addresses this narrow question succinctly. Ohio law is not particularly different from the law of most states in this regard, constrained as the states are by the high standard of U.S. Supreme Court decisions applying the First Amendment to such cases (internal quotations and citations omitted). Indeed this decision is based almost entirely on U.S. Supreme Court precedent: Read More…

Libel in the blogosphere

Originally posted 2006-05-05 11:49:54. Republished by Blog Post Promoter

Glenn Reynolds wonders aloud whether the Maine blogger dustup (UPDATE: suit withdrawn!) will generate some interest in his new “libel in the blogosphere” article. Well, what is LIKELIHOOD OF CONFUSION if not an obsequious devotee of Instapundit, who has been known to link here on a frequency akin to when we change the clocks?

I haven’t read the piece yet, but I will. The fact is that as an Internet law icon myself (that is typed with appropriate irony), I get a lot of inquiries on this topic (besides my pro bono work with the Media Bloggers Association on cases like the Maine situation). I anticipate that his bottom line will be the same one I tell 99% of prospective defamation clients:

  1. You haven’t suffered, and certainly can’t prove, damages.
  2. You’re highly unlikely to meet the legal standards for defamation, especially since (a) truth is a complete defense to a defamation claim and (b) statements of opinion (which is read very broadly) are never defamation, which requires a false assertion of what purports to be fact.
  3. You can’t afford litigation, and no, you’re not entitled to attorneys’ fees in the unlikely event that you do win.
  4. Your lawsuit will mainly serve to magnify “defamatory” statements that otherwise are little more than drops in the ocean — if it involves the Internet, immensely so.

But then, Prof. Reynolds has footnotes. And a gazillion readers. But I have [used to have] polka dots along the margins!

Defamation and Bloggers, Once and For All

Originally posted 2005-03-22 23:39:00. Republished by Blog Post Promoter

Question I seem to get every week: What’s with blogs and defamation? Coleman, are you pro? Con? Here’s [There was once] what appears[ed} to be a very well done article, originally published in the [now-defunct] New Communications Blogzine, that is[was] far more information than I’m going to give anyone for free.

I’m with Popehat

Do you like defamation cases?

Cases involving blogging and social media?

Patterico Public Enemy No. 1

How about SLAPP motions in cases involving defamation and blogging and social media and Patterico?!

And what if they’re cases involving Patterico and Popehat and LIKELIHOOD OF CONFUSION®?  (The case is in California, but I was in charge of punctuation and adjectives!)

Then click here already!

No recourse

Originally posted 2007-12-07 14:17:01. Republished by Blog Post Promoter

James C. Goodale, the former vice chairman of The New York Times, in the New York Law Journal (registration required):

Until the Internet came along, a publisher/distributor, similar to Mr. Ciolli and his Web site, would have responsibility for the content disseminated. With the advent of the Net, however, Congress passed a law that changed this age-old concept.Generally, under this law, a person who provides a site as a bulletin board for others has no responsibility for its content. If, however, such a provider actively edits content, there could be responsibility.

With little responsibility for speech, the Internet would seem to be a First Amendment paradise. But the fact that a bulletin board operator has no responsibility defies human experience. It has led directly to the dilemma of the two Yale law students.

They may have no remedy for their destroyed reputations and perhaps even careers.

As a society, we have long ago concluded that reputations of public officials, and the like, have limited protection under the First Amendment. But the Yale law students are not public officials, public figures or otherwise engaged in public discourse. They are private individuals. . . .

Court orders to unmask anonymous speakers are not slam dunks. There are excellent First Amendment reasons, in the ordinary course, not to unmask them.

The Federalist Papers were written by anonymous speakers. Dissidents’ political speeches around the world are posted on the Net by anonymous speakers.

But the law students’ case does not involve speech critical of government, or what First Amendment lawyers call “political speech.” It is, as noted above, private speech.

Causing private, but very real, harm. It’s wrong, what’s going on with Internet-based defamation.

“Consumer fraud”: The new online speech control law?

Originally posted 2008-03-19 13:10:44. Republished by Blog Post Promoter

CONFUSION picense plateGet this:

New Jersey prosecutors have subpoenaed records of JuicyCampus.com, a Web site that publishes anonymous, often malicious gossip about college students.

Language on the site ranges from catty to hateful and offensive. One thread, for example, on the “most overrated Princeton student” quickly dissolves into name-calling, homophobia and anti-Semitism.

JuicyCampus may be violating the state’s Consumer Fraud Act by suggesting that it doesn’t allow offensive material but providing no enforcement of that rule — and no way for users to report or dispute the material, New Jersey Attorney General Anne Milgram said Tuesday.

What a load of baloney! I have litigated the New Jersey Consumer Fraud Act frontwards, backwards and sideways, and believe me — this would be an unbelievable stretch. If Milgram’s interpretation were to fly, it would make that statute an omnibus be-a-good-person-online law with essentially no meaningful limitations. Not that I doubt that the Attorney General would love to have such power, but that would certainly be beyond anything contemplated by the New Jersey Legislature when it was passed.

Of course beyond what the Act itself provides, such an application of it would be unconstitutional too.  Unfortunately, neither of those are giant concerns to some judges in the Garden State.

By the way, this is not an endorsement of online defamation, especially when done anonymously. On the contrary. But please, let’s call a fraud a fraud.

UPDATE here from Overlawyered.

Defamation online

Originally posted 2006-12-11 21:43:28. Republished by Blog Post Promoter

It’s our future.  Instapundit rounds up developments, which Julie Hilden is all over.  I’ve made my point on this topic — less a legal than a cultural observation.

The best of the best. Of the bestest.

Originally posted 2009-04-14 11:20:40. Republished by Blog Post Promoter

Only Marc Randazza can put certain things in certain ways — and on those occasions when he’s actually right (like when he’s discussing law and not politics! ;-)), man, he’s right on. Well, he’s right on today in this latest demonstration of the Streisand Effect.

As Marco explains in his not-quite-safe-for-work post, a man called Morgan, whose name only ironically reminds us of an investment bank, posted what is at best a lame, and at worst a tinfoil-hat-special, gripe site about our benevolent rulers at Goldman Sachs. Morgan’s “mistake” — actually, the smartest thing he ever did by virtue of the big-firm, big-institution hamhandedness demonstrated here — was registering the domain names www.goldmansachs666.com and www.goldmansachs13.com — Goldman Sachs plus The Beast, of course, and Goldman Sachs plus unlucky-13 — so they would forward to his rant-a-thon. Let’s pick it up from the middle and relatively quotable part of Marco’s post:

With Morgan’s blog plodding along in obscurity, enter John A. Squires of Chadbourne and Parke, LLP. Now this guy has an impressive background: He was top of his class in law school, on his law school’s moot court team, on law review, and an Order of the Coif inductee. Sounds like a pretty smart guy, no? Smart enough to become co-chair of the intellectual property practice at a major law firm. Smart enough that he “is widely recognized in both the financial services and technology sectors as one of the country’s top experts on the issue of patent-eligible technologies.”

Nevertheless, he put his name to one of the dumbest trademark demand letters I have ever read. Go ahead, click it. If you practice trademark law, don’t drink any liquids while reading or you’ll shoot them out your nose as you’re laughing and then you might have to change your shirt.

This letter seems to anecdotally confirm two things I’ve preached for years:

1) Patent guys don’t necessarily know trademark law,

2) A lawyer who doesn’t understand public relations is only half a lawyer.

I’m just guessing here, but I’m reasonably certain that Mr. Squires did know better. This demand letter just screams “reluctantly written to shut a client up.” Patent lawyer or not, the guy had to know that his trademark claims were just plain stupid.

Not just “public relations,” but the magic of Internet-threat-letter-negative-leverage!

When will they ever learn?

More good stuff at Marco’s place, plus, in the comments, interesting insight on the legal career paths of the rich and famous.

UPDATE: “As of April 17, GoldmanSachs666.com has received more than 236,000 hits.’

More on blogger immunity for libel

Originally posted 2007-02-27 01:06:36. Republished by Blog Post Promoter

Instapundit.com said it perfectly well, and he can afford the occasional wholesale lifting of an item, can’t he?

MORE ON BLOGGER IMMUNITY FOR LIBEL in posts by blog-commenters, from the U.S. Court of Appeals for the First Circuit. This isn’t earthshaking — I discussed the issue in this article — but it’s certainly more support for the position. Full opinion here.

Blogger lawsuit resolved

Originally posted 2007-04-17 11:43:48. Republished by Blog Post Promoter

Just Another Pretty Farce indeed!

By the way, download Glenn Reynolds’s article (we’ve linked to it before) on online defamation. It… it would mean a lot to him.

Goldman Sachs, those big losers!

Originally posted 2009-07-17 00:01:51. Republished by Blog Post Promoter

Remember Mike Morgan, the flaky sort who dast challenge the mighty Men of Gold?   Now it’s over, like just another paid-back multi-billion dollar loan, and here’s how it all ends (via @walterolson):

Mike Morgan, a Florida-based investment adviser who started the controversial blog GoldmanSachs666.com, has prevailed in a case he brought against the investment bank in April.

Goldman . . . quietly agreed to several stipulations last month in order to dismiss the case. . . .

[H]e appears to have emerged victorious in the Goldman matter provided he maintains a prominently displayed disclaimer on his Web site disavowing any affiliation with the investment bank.In turn, Goldman agreed to refrain from interfering with Morgan’s use of GoldmanSachs666.com.  [Chadbourne & Parke IP practice co-chair John] Squires [(Goldman's former chief in-house IP counsel)] Squires and Chadbourne IP litigation counsel Peter Bucci represented Goldman in the litigation.

That’ll teach those Goldman guys.  They must feel just rotten.  See, look:

Squires declined an Am Law Daily request for comment.

Imagine.  Well, maybe back at Goldman they’re not feeling all that rotten.  Here’s what goes in the ellipses:

Goldman, which exceeded expectations by reporting $3.4 billion in second quarter profits this week, quietly agreed to several stipulations last month in order to dismiss the case.

As I was saying:  This just proves that even having literally all the money in the world doesn’t always win cases, see!

Yeah, that’s the ticket.

Who are you to say?

Originally posted 2008-01-15 11:57:25. Republished by Blog Post Promoter

We all love loopholes. Concurring Opinions writes here about the Seinfeld defamation lawsuit, and asks:  How broad, really, is the “opinion” loophole?

Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the underlying defamation case. A series of innuendoes, jokes, dismissals, and jibes can probably undermine a reputation far more effectively than one false fact.

Judges, in fact, have been trained by a generation of post-Sullivan jurisprudence to find any way possible either to dismiss defamation cases or to defang them so severely by the time they get to a jury that a plaintiff’s verdict is almost impossible to achieve.

Thus the only threat implied by a defamation lawsuit, and one that will hardly impress gazillionaires like Jerry Seinfeld, is the cost of defending one.

Via Instapundit.

UPDATE:  The suit against Mrs. Jerry was tossed, but the just-making-it-worse riffing by Jerry (“if you read history, many of the three-name people do become assassins. Mark David Chapman. And you know, James Earl Ray.  So that’s my concern”), well, just made it worse.